JONES v. PEOPLE (1992)

This criminal case was assigned to Department 130 of the Los Angeles Superior Court for all purposes in February of 1991.   After several continuances, it was set for trial on December 4, 1991, at which time it was trailed to December 9, 1991.   Immediately after the matter was ordered trailed, petitioner Maurice Jones filed a peremptory judicial challenge against Judge Ouderkirk, the judge presiding, in Department 130.   The issue presented is whether the motion for disqualification was timely.   For reasons explained more fully in this opinion, we conclude that it was timely.¹

FACTS

Petitioner Maurice Jones is charged with mayhem in violation of Penal Code section 203 and an assault upon a peace officer in violation of Penal Code section 245, subdivision (c).   He was arraigned in Department 130 on February 22, 1991.   Since that date all appearances in the trial court were held in Department 130 before Judge John Ouderkirk, including pretrial conference, motions, trial setting and continuances.

The matter was originally set for trial for June 24, 1991.   Trial was continued with petitioner's concurrence to August 26, 1991, October 31, 1991, and November 1, 1991.

On November 1, 1991, trial was continued over petitioner's objection on the ground that petitioner's codefendant Otis Tooks (who is not a party to this proceeding) was willing to waive time for the purpose of further preparation and there was “no legal reason” for severance.   A pending Pitchess motion ² and trial were continued to November 25, 1991.

On November 15, 1991, codefendant Tooks attempted to file a motion to disqualify Judge Ouderkirk pursuant to Code of Civil Procedure sections 170.1 and 170.3.   This motion was not considered because his counsel did not join in the motion.   Codefendant Took then moved the court for orders relieving his attorney and allowing him to represent himself.   These motions were denied, the trial date (November 25, 1991) was vacated and the matter was continued for Pitchess hearing and trial to December 4, 1991.   Petitioner's counsel stated that he was ready for trial at the last appearance, remained ready and would “be ready hopefully on the 4th.” ³

On December 4, 1991, all parties answered ready for trial.   Petitioner's counsel moved for dismissal of the information on the ground that his client's right to speedy trial had been violated.   The motion was denied and the matter was trailed to December 9, 1991.   Petitioner's counsel then immediately filed the peremptory challenge which is the subject of this proceeding.⁴  Petitioner's counsel argued that the motion was timely because he did not know where the case would actually be tried until it was trailed to December 9, 1991, in the same department.

The court responded that it “ha[d] always indicated on and off the record that it fully intended to try this case in this courtroom, and at all cost, try not to send it out to any other judge.”   The motion was denied as untimely on the ground that December 4, 1991, was the date set for trial and therefore the motion should have been filed five days prior to that date.

On December 6, 1991, petitioner sought extraordinary relief in this court alleging, inter alia, “It is respondent court's practice to either send a matter out for trial to Department 100 for assignment for trial, or keep the matter itself.   Respondent court makes that determination at the last minute based upon its availability.   It maintained that procedure in this case.”

We stayed proceedings in the trial court until further order of this court or until the case was transferred to another court.

We now have before us the declarations of Superior Court Judge Gary Klausner, Superior Court Judge John Ouderkirk and petitioner's trial counsel.   It appears from these declarations that at some unspecified time the supervising judge of the criminal departments for the Los Angeles Superior Court initiated administrative changes designed to “speed up” the criminal trial process.   One such change was the establishment of 27 direct calendar courts “whose goal would be to process and try all of their own cases.”   The purpose was “to change the former expectations of judges and lawyers alike that continuances were inevitable, and that a case would never actually be tried by the court to whom it was assigned.”   A “key element” of the program was the establishment of a local policy which required the parties to cases assigned to a direct calendar court to exercise any peremptory challenges “early in the process.” ⁵

Judge Klausner declares that as a result of this change, 95 percent of the cases assigned to direct calendar courts are actually disposed of in the assigned court, “many” direct calendar courts have been able to complete 100 percent of the cases assigned to them, and an average of “less than one case” per day has been referred “back to Department 1.” ⁶

In reply, petitioner's trial counsel declares that of the four cases he tried in 1991, three were sent to Department 100 during their respective trailing periods to be reassigned for trial.   The other one was tried in the court in which it was originally calendared, but only because the defendant, who was not in custody, continued to waive time in order to keep the case there.   Of those cases handled by defense counsel which resolved as the jury was being brought into the courtroom on the last day of trailing, all had been sent by their direct calendar courts to Department 100 for reassignment after the beginning of the trailing period.

With regard to his experience in Department 130, counsel declares:  “The only case I had in Department 130 before Judge Ouderkirk in 1991 that went past day ‘5 of 10’ for trial was People v. John Henderson, BA024228.   In Henderson Judge Ouderkirk trailed the matter to day ‘9 of 10’ in his Department before he sent the case to Department 100 for trial.”

For these reasons, and because counsel was aware that Department 130 was engaged in the early stages of another trial, he believed this matter would be sent to Department 100 for reassignment.   He declares that he did not realize until December 4, 1991, when Judge Ouderkirk trailed the matter to “day ‘five of ten’ in Department 130” that Judge Ouderkirk would actually preside over the trial in this case.

Judge Ouderkirk declares that approximately six of the six hundred cases he processed during 1991 had to be returned to Department 100 “as a last resort.”   He further declares:  “[I]n the present case I made it clear to counsel early on in the case that due to the complexities of this particular case, this case had priority in being brought to trial before me in an expeditious way.   The case involved five state prisoner witnesses, including at least one who was under a sentence of death, who had been brought to Los Angeles for the trial.”

Defense counsel counters that “Judge Ouderkirk never indicated in my presence either or on off the record that [this] ․ case would be tried in his Court and nowhere else.”

DISCUSSION

Code of Civil Procedure section 170.6, as it exists today, is the result of nine separate amendments since it was enacted in 1957.   The end result has a “patchwork” quality.   For example, although the statute specifies the time within which a peremptory judicial challenge must be filed, which of the several options applies depends on several factors including the nature of the proceeding, the number of judges in the court, and the manner by which the court administers its case load.⁷

As might be expected, the case law interpreting this statute is similarly diverse.   Some courts have declared that the “general rule” established by section 170.6 is that disqualification is permitted at any time prior to commencement of the trial or hearing, and that the time periods specified in the statute are “exceptions” to this general rule.  (See, e.g., Los Angeles County Dept. of Pub. Social Services v. Superior Court (1977) 69 Cal.App.3d 407, 412, 138 Cal.Rptr. 43.) ⁸  Others simply refer to the various time provisions as “rules” (as we have done in this opinion) which apply in various circumstances.  (See, e.g., People v. Escobedo (1973) 35 Cal.App.3d 32, 39, 110 Cal.Rptr. 550.)

With regard to the issue which is central to this case, a split of authority exists as to whether an assignment to a department is the equivalent of an assignment to a judge.   Most of the cases discussing this issue arose prior to the statutory amendment which added the all-purpose assignment rule in 1989.   Therefore, the issue was usually discussed in the context of an analysis to determine the timeliness of a peremptory challenge under the 10–day–5–day–rule.   Resolution of this issue depended, in turn, on when the identity of the judge was “known” within the meaning of that rule.

Some courts reasoned that assignment to a department in which a particular judge presided did not identify the judge with sufficient certainty.   For example, in Eagle Maintenance & Supply Co. v. Superior Court (1961) 196 Cal.App.2d 692, 694–695, 16 Cal.Rptr. 745, the court explained:  “[I]t is a matter of common knowledge among lawyers that there are many transfers of judges from one department to another throughout the year, due among other things to the absence of judges for normal sick leave and vacation periods.”   (See also Sambrano v. Superior Court (1973) 31 Cal.App.3d 416, 418, 107 Cal.Rptr. 274;  Los Angeles County Dept. of Pub. Social Services v. Superior Court, supra, 69 Cal.App.3d at p. 414, 138 Cal.Rptr. 43;  Woodman v. Selvage (1968) 263 Cal.App.2d 390, 394, 396, 69 Cal.Rptr. 687;  In re Jose S., supra, 78 Cal.App.3d at p. 627, 144 Cal.Rptr. 309.)   In one such case, Division Five of this court specifically rejected the superior court's contention that its direct calendaring system was “more akin to an assignment to a particular judge ‘for all purposes' than assignment to a particular department” (People v. Superior Court (Hall), supra, 160 Cal.App.3d at p. 1084, fn. omitted, 207 Cal.Rptr. 131) with the statement:  “The present case was assigned to a particular department of the superior court.   Despite Judge O'Brien's characterization of his assignment as ‘permanent,’ contingencies arise and reassignments occur.”  (160 Cal.App.3d at p. 1086, 207 Cal.Rptr. 131.)

Other courts, however, held that the identity of the judge was “known” when the departmental assignment was made.   For example, in People v. Roerman (1961) 189 Cal.App.2d 150, 164, 10 Cal.Rptr. 870, the reviewing court rejected the contention that assignment to a particular department did not constitute an assignment to a particular judge, reasoning that “[w]hat may be done to relieve calendar congestion does not change the circumstances ․ which reflect the calendaring of the case in [a specific] department ․ where [a known judge] was presiding.” ⁹  (Id. at p. 165, 10 Cal.Rptr. 870.)

This court added its voice to the discussion of this issue on several occasions.   In People v. Escobedo, supra, 35 Cal.App.3d 32, 37, 110 Cal.Rptr. 550, we stated:  “Cases are commonly assigned to departments of the superior court, and not to judges, but such an assignment is ordinarily regarded as notice that the judge then regularly sitting in the named department will hear the matter.  [Citation.]  But even though a judge is assigned to a department ‘permanently’ or for a fixed period, the litigant cannot be certain that a change will not occur with little or no notice due to illness, vacation or a reassignment of the judge by the presiding judge of the court.”

In Villarruel v. Superior Court (1973) 35 Cal.App.3d 559, 562, 110 Cal.Rptr. 861, we observed:  “Where a case is assigned in advance to a trial department ․ the litigant will not know with certainty what judge will be sitting in that department on the appointed day.   Even though judges are ordinarily assigned to departments for fixed periods, changes sometimes occur with little or no advance notice because of illness, vacations, or a need for the judge to serve elsewhere.”

In Zdonek v. Superior Court (1974) 38 Cal.App.3d 849, 113 Cal.Rptr. 669, a majority of this court held that the 10–day–5–day rule applied in a civil case assigned from a master calendar court to a specific judge for all purposes.   Justice Kingsley dissented, reasoning:  “The instant case was assigned to Judge Jefferson by name, it traveled with him into any department to which he might thereafter be assigned or re-assigned.   To permit a challenge under section 170.6 after the parties have held hearings before the designated judge, and more than a year after all parties and counsel knew that he was to hear every motion and to preside at the trial, totally frustrates the purpose of the original assignment.”  (38 Cal.App.3d at pp. 856–857, 113 Cal.Rptr. 669.)

The holding of Zdonek was criticized and rejected by the Fourth District in Augustyn v. Superior Court (1986) 186 Cal.App.3d 1221, 1227, 231 Cal.Rptr. 298, and ultimately abandoned by this court in Woodman v. Superior Court (1987) 196 Cal.App.3d 407, 241 Cal.Rptr. 818, where we concluded that the master calendar rule should apply to assignments made to specific judges for all purposes including trial.   We noted that “the dissent in Zdonek recognized that an all purpose assignment is of a different species than either an action assigned for future trial or one assigned for immediate trial.”  (196 Cal.App.3d at p. 418, fn. omitted, 241 Cal.Rptr. 818.)   We explained:  “An all-purpose assignment clearly contemplates assignment to a specific judge to process the litigation in its totality rather than a trial department in which the identity of the judge is subject to the vagaries of personal and administrative necessity.   The purpose of such assignment is to permit the efficient disposition of complex matters and this commendable purpose would be utterly frustrated unless there is certainty that once assigned, the all-purpose judge will preside over the action from beginning to end.”  (196 Cal.App.3d at p. 421, 241 Cal.Rptr. 818.)

In response to our holding in Woodman, the Legislature amended section 170.6 to add the all-purpose assignment rule.

 Shortly thereafter, Division Five of this court held in Mackey v. Superior Court (1990) 221 Cal.App.3d 1124, 1127, 270 Cal.Rptr. 905, that the amendment did “not affect the holding of [People v. Superior Court (Hall), supra, 160 Cal.App.3d 1081, 207 Cal.Rptr. 131,] that matters assigned to a particular department, rather than a particular judge, are subject to the 10–day/5–day rule.”  (Emphasis and fn. omitted.)

In direct response to the holding of Mackey, respondent superior court “issued a ‘Statement of Policy for the Central District Criminal Departments of the Los Angeles Superior Court.’   The statement, issued on superior court letterhead and signed by the supervising judge of the court's criminal division, was ‘widely disseminated’ ․, including publication in local legal newspapers.   The statement declared that all criminal calendar departments of the central district were designated as ‘direct calendar courts,’ and it listed the judges presiding in those departments.”  (People v. Superior Court (Gonzales) (1986) 228 Cal.App.3d 1588, 1590, 279 Cal.Rptr. 679.)   The policy required that “ ‘challenge[s] pursuant to C.C.P. Section 170.6(2) must be filed within ten (10) days of the defendant's first appearance in the direct calendar court.’ ”  (228 Cal.App.3d at p. 1590, 279 Cal.Rptr. 679.)   This policy was in effect at the time this case was assigned to Department 130.

Division Five declared the policy statement to be “contrary to [its] interpretation of section 170.6 in Mackey and ․ therefore ‘inconsistent with the law.’ ”  (People v. Superior Court (Gonzales), supra, 228 Cal.App.3d at p. 1591, 279 Cal.Rptr. 679.)   The court explained:  “The respondent court has made no showing here that a ․ trial delay reduction program [similar to “Fast Track” ¹⁰ ] has been instituted for criminal cases, or that the ‘rule’ promulgated in its policy statement was a ‘procedure, standard or policy’ adopted under such a program.   The analysis set forth in Mackey therefore governs this case.”  (228 Cal.App.3d at p. 1592, 279 Cal.Rptr. 679.)

One month later, Division Seven concurred in Reygoza v. Superior Court, supra, 230 Cal.App.3d 514, 281 Cal.Rptr. 390, noting that it was not until oral argument in that case that respondent superior court argued that the “Court Policy was part of a plan to change the ‘local legal culture’ and that the Central District Criminal Departments had been transformed into direct calendar courts.”  (230 Cal.App.3d at p. 522, fn. 7, 281 Cal.Rptr. 390.)   Finding no support for these statements in the record, the Reygoza court disregarded them (ibid.) and concluded that the policy had not “change[d] the situation in the criminal departments whereby cases are reassigned in order to meet speedy trial deadlines.”  (230 Cal.App.3d at p. 522, 281 Cal.Rptr. 390.)

Respondent claims that Reygoza and Gonzales are not controlling in this case because it has timely presented the evidence which it belatedly sought to assert in Reygoza and which demonstrates that its system of direct calendaring constitutes an assignment to a judge for all purposes within the meaning of the all-purpose assignment rule of section 170.6.¹¹

It is clear, from the declarations, that respondent superior court has implemented a policy designed to process criminal cases more efficiently.   It is claimed by Judge Klausner that, “[t]he program has been a great success [.]”  An undisclosed number of the 27 direct calendaring courts have completed all of the cases assigned to them.   According to Judge Ouderkirk's declaration, he completed 90 percent of the cases assigned to his court in 1991.

We have not, however, been provided with the precise number of cases that were reassigned from all of the 27 direct calendar courts during 1991.   Nor have we been told the number of these cases in which pleas were taken as distinguished from those which were tried.   The declarations before us support the conclusion that a substantial amount of the current “inventory” of criminal cases in the central district can expect to be reassigned to a different courtroom or a different judge prior to trial.¹²

 While the criminal court department's percentage rate of success is impressive, these statistics demonstrate that if all criminal defendants assigned to a direct calendar court were required to exercise their peremptory within the time allowed by the all-purpose assignment rule, i.e., within 10 days of notice of the initial assignment, a significant number would be wasted upon a judge who would not ultimately preside at the trial.   We do not believe the Legislature intended the 1989 amendment to have such an effect.¹³

We recognize that respondent has attempted to create a system of all purpose case assignments similar to the Fast Track Program which has been used in many civil courts.   The language used in respondent's Statement of Policy is an admirable attempt to achieve that goal;  however, the statistics available to us do not demonstrate that the policy is working as intended by respondent, due to the overriding importance of the defendant's right to a speedy trial in a criminal case.

 We did not initially place the burden of establishing a working policy on the Los Angeles Superior Court.   It is our position that the petitioner made a prima facie showing of entitlement to relief by alleging:  “It is respondent court's practice to either send a matter set for trial to Department 100 for assignment for trial, or keep the matter itself.   Respondent court makes that determination at the last minute based on its availability.   It maintained that procedure in this case.”   In rebuttal, respondent superior court offered the statistics set forth in this opinion.   In the opinion of the majority, these statistics are simply not adequate to overcome petitioner's showing.

For all of the foregoing reasons, we conclude that the 10–day–5–day rule applies in this case.   Since the motion was made five days before the date to which trial was continued, it was timely.

The alternative writ is granted.   Let a peremptory writ of mandate issue, commanding respondent court to vacate its order of December 4, 1991, denying petitioner's section 170.6 motion, and to enter a new and different order allowing petitioner to withdraw his motion in light of the reassignment of Judge Ouderkirk during the pendency of these proceedings.

I respectfully dissent.

There are at least three issues, pertinent to this case, that are established beyond dispute.   First, when a case is assigned to a specific judge for all purposes, a peremptory challenge to the judge must be made “within 10 days after notice of the all purpose assignment or, if the party has not yet appeared in the action, then within 10 days after the appearance.”  (Code Civ.Proc., § 170.6, subd. 2 ¹ ;  Woodman v. Superior Court (1987) 196 Cal.App.3d 407, 241 Cal.Rptr. 818.)

Second, the Los Angeles Superior Court has adopted a direct calendar, all-purpose assignment policy for the criminal trial courts in the central district, pursuant to which “any case assigned to a direct calendar court is assigned to the judge presiding in that court for all purposes, including trials.”   The trial court document lists the judges in the program by name with their department.   One of those listings is:  “D[epartment] 130–John W. Ouderkirk.” ²

Finally, as the lead opinion itself points out, from the outset, the case was assigned “for all purposes.”  (Opn. p. 377.)   Beginning with the arraignment on February 22, 1991, every appearance in the case has been before Judge Ouderkirk in Department 130.   On December 4, 1991, with petitioner present, defense counsel announced ready for trial.   The People also were ready for trial.   It was only when Judge Ouderkirk trailed the case for a few days (to December 9, 1991) that petitioner filed the section 170.6 challenge.

From the foregoing, I believe the conclusion is inescapable that the challenge was late, and that it was properly stricken.   The lead opinion, having traced the history of the case and the logic of the statute to this point, arrives at a different conclusion.   I believe it errs in this final step of its analysis.

I

The majority, quite properly in my opinion, does not adopt the view that the superior court cannot establish an assignment policy in criminal cases that satifies the all-purpose provision of section 170.6.   The lead opinion sets out the superior court policy and its rationale in laudatory terms, and appears to recognize that the court has done everything it can to establish an all-purpose assignment policy for the affected trial departments.   The problem, as the majority sees it, is that “the statistics available to us do not demonstrate that the policy is working as intended by respondent, due to the overriding importance of the defendant's right to a speedy trial in a criminal case.”  (Opn. p. 383.)

The statistical lapse to which the lead opinion refers is the lack of information about the percentage of cases assigned to direct calendar departments that are actually tried there, as compared with the percentage of cases transferred to other departments for trial.   As the majority points out, the statistical information we are given covers all cases assigned to the direct calendar departments, and does not break down the numbers between those that are disposed of by plea (presumably the majority) and those that are tried.

We do know, from the declaration of the supervising judge of the criminal departments that, on the average, less than one case per day from the aggregate of 24 trial departments in the program is transferred to Department 100 for reassignment.   That is a strong indication that reassignment for trial is very much an exception rather than the rule.   We would have a different case if it were shown that, in operation, most, or even a substantial percentage of cases in the all-purpose assignment program—either as a whole or in the particular trial department—were transferred for trial to a department other than the original department.   Such a showing would indicate that the program is a sham, and would justify writ intervention in this case.

I part company with the majority in the allocation of the burden of showing that a policy that is fair and valid on its face is something else in operation.   The lead opinion would place that burden on the court.³  The law is otherwise.   It allocates the burden of showing that a policy fair on its face is unfair and therefore illegal because of the way it is applied, to the party challenging the law as applied.  (See, e.g., Murgia v. Municipal Court (1975) 15 Cal.3d 286, 297, 124 Cal.Rptr. 204, 540 P.2d 44 [discriminatory prosecution];  Batson v. Kentucky (1986) 476 U.S. 79, 86, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 [peremptory challenge of prospective priors].)   It has been specifically held that the burden of demonstrating that an all-purpose assignment program is not carried out in practice, so that the 10–day time to challenge a judge pursuant to section 170.6 should not apply, is on the party who makes that claim.  (Shipp v. Superior Court (1992) 5 Cal.App.4th 147, 152, 6 Cal.Rptr.2d 685 [“[t]he petitioner has the burden of establishing that the assignment is actually not an all-purpose assignment”].)

Petitioner in this case does not come close to meeting that burden.   His attorney filed an anecdotal declaration recounting his personal experience in handling cases under the direct calendar system.   The trial judge and the supervising judge of the criminal departments filed opposing declarations, demonstrating the legitimacy of the program.   Nothing before the trial court or this court suggests that trial before the originally assigned judge is the exception rather than the rule, or that the system exists only on paper—either in the program generally or in cases assigned to Judge Ouderkirk.

I believe it is telling that the trial judge informed counsel “ ‘on and off the record that it fully intended to try this case in this courtroom, and at all cost, try not to send it out to any other judge.’ ”  (Opn. p. 378.)   Judge Ouderkirk explained why this case in particular would not be transferred out:  it was complex and was entitled to priority involving, as it did, five state prisoner witnesses, at least one of whom had been sentenced to death.   These prisoners had to be brought to Los Angeles for trial.  (Opn. p. 379.)   Defense counsel denies hearing the judge tell him that the case would not be transferred out, but on this record we must credit the trial judge.

The majority's expressed concern is that the impact of defendants' speedy trial rights in criminal cases (see Pen.Code, § 1382) would perforce lead to cases being transferred out as trial dates approached.   We dealt with a similar argument in Woodman v. Superior Court:  “The final argument advanced against the application of the master calendar rule to all purpose criminal assignments ⁴ is that a criminal defendant could force transfer of an all purpose matter by waiting until the court was engaged in another proceeding and refusing to waive time.   This issue is not before us and is not relevant to the timeliness of a peremptory challenge.”  (Woodman v. Superior Court, supra, 196 Cal.App.3d at p. 421, 241 Cal.Rptr. 818;  emphasis added.)

It is, of course, quite true that it cannot be known for sure that an assigned judge will try a case until the trial actually begins before that judge.   The judge may become ill or otherwise physically unable to try the case;  the judge may be elevated or retire;  or his or her term of office may expire without a reassignment or stipulation that would enable the judge to proceed with trial of the case;  or, the judge may be transferred to an assignment that makes it impossible or impractical to try the case.   These contingencies can and do arise in any kind of system—both direct calendar and master calendar, and both civil and criminal.   The fact that they occur is not a reason to obviate the 10–day rules of section 170.6.   If it were, those provisions as well as the 5–day/10–day provision (which counts time from the date the trial judge “is known”) would be entirely ineffective.

II

The lead opinion provides a useful summary of the history and development of section 170.6 to its present form, and recounts the disagreements that have developed among appellate courts over some of its applications.  (See also People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 695, 10 Cal.Rptr.2d 873, which discusses the development of the statute from another perspective.)   The opinion states that the issue of whether assignment to a department is the equivalent of an assignment to the judge assigned to that department “is central to this case.”  (Opn. p. 380.)   I do not believe that that is the key issue, for it may be assumed, at least for sake of argument, that assignment to a department, without more, is not the same as an all-purpose assignment under the statute.  (See People v. Superior Court (Hall) (1984) 160 Cal.App.3d 1081, 1086, 207 Cal.Rptr. 131;  Mackey v. Superior Court (1990) 221 Cal.App.3d 1124, 270 Cal.Rptr. 905.) ⁵

In this case, however, there is much more:  the explicit policy of the superior court adopting a direct calendar, all-purpose assignment policy for the criminal trial departments in the central district which specifies that cases are assigned to a specific judge for all purposes, and names the judge, and the stated policy objectives that policy is designed to implement.

Two cases before this one raise questions about the efficacy of this policy, and since I believe the policy to be valid on the record before us, I must deal with those decisions, and a case that precedes them.

The two cases were preceded by Mackey v. Superior Court, supra, 221 Cal.App.3d 1124, 270 Cal.Rptr. 905, a decision by Division 5 of this district.   In that case, a trial judge, “reflecting the consensus of the judges in the east branch of the superior court” took the position that the then recently enacted all-purpose assignment provision of section 170.6 meant that a peremptory challenge to a judge must be filed within 10 days of the assignment of a case to the department in which the judge is sitting.   The court rejected that position, and held that the 10–day/5–day provision of the statute governed the situation.   The Mackey case did not set out any explicit court policy on assignment of cases to named judges;  it is inferable that there was none.

Mackey was followed by the first of the two cases that addresses an explicit all-purpose assignment:  People v. Superior Court (Gonzales) (1991) 228 Cal.App.3d 1588, 279 Cal.Rptr. 679, also decided by Division 5.   In Gonzales, the trial court again ruled that a peremptory challenge must be filed within 10 days of an assignment of a case to the judge designated to try the matter.   This time, the ruling was based on a policy of the court that provided that assignment of a case to a department is an assignment to the judge in that department “for all purposes.”

The Gonzales court stated that the policy had been adopted “in direct response to Mackey ” (228 Cal.App.3d at p. 1590, 279 Cal.Rptr. 679), but held that the policy itself was invalid.   The court reasoned that the rule-making power of trial courts is founded in Government Code section 68070, which authorizes courts to make rules for their internal government that are “not inconsistent with law”;  that the Mackey decision was “law”;  and that, in trying to overcome it, the court had exceeded its rule-making power.   The court did not discuss just what about the superior court policy is illegal.   It certainly does not say that trial courts cannot adopt a direct calendar, all-purpose assignment system.   Apparently, in argument before the Court of Appeal, the superior court tried to justify its policy as patterned after the all-purpose assignment program adopted in designated civil departments under the Trial Court Delay Reduction Act of 1986 (Gov.Code, § 68600, et seq.)   The Gonzales court correctly pointed out that the delay reduction statute included a specific provision (Gov.Code, § 68612) that permitted the court to shorten statutory times for the performance of an act.  (See Lawrence v. Superior Court (1988) 206 Cal.App.3d 611, 253 Cal.Rptr. 748, upholding Los Angeles Superior Court rule 1104.1.)   There is no similar statute that authorizes trial courts to reduce the time to file a challenge in criminal cases.   Certainly, a court policy that purported to reduce the statutory time within which to file a peremptory challenge, without authorization in another statute, would be invalid.⁶

The second case is Reygoza v. Superior Court, supra, 230 Cal.App.3d 514, 281 Cal.Rptr. 390, decided by Division Seven of this district.   The Reygoza court held that the superior court policy did not validly compel the filing of a section 170.6 challenge within 10 days of the assignment of the case to a trial court.   The court concluded that “based on our own experience, in Los Angeles County Superior Court, the judge to whom a criminal case is assigned often is not the trial judge as the case has to be transferred in order to meet speedy trial deadlines” (230 Cal.App.3d at p. 522, 281 Cal.Rptr. 390);  the court policy does not prevent reassignment of cases (id.);   and that a challenge made early in the proceedings “will very likely be wasted on a judge who will not be the defendant's trial judge.”  (Id. at p. 523, 281 Cal.Rptr. 390.)

The court noted the explicit court policy for all-purpose assignments, and the rationale that accompanied it, but disregarded the latter because it was not in the record and had been mentioned for the first time in oral argument.  (Reygoza v. Superior Court, supra, 230 Cal.App.3d at p. 522, fn. 7, 281 Cal.Rptr. 390.)

To the extent that the Reygoza court rests its decision on the proposition that a trial court cannot reduce the time the Legislature has allowed for filing a peremptory challenge against a judge unless the Legislature specifically allows it to do so, I agree.   But I do not agree that this proposition applies to the policy we are reviewing.   The decision suggests that there is nothing in the court policy inhibiting reassignment of cases;  in fact, there is, as the lead opinion here recounts in detail.   That is the material that the Reygoza court regarded as not timely presented, and disregarded.   Finally, to the degree that the Reygoza opinion may be read as suggesting that it is not legally possible to have a direct calendar, all-purpose system in criminal cases, I disagree.

The superior court policy we are reviewing does not purport to reduce the statutory time to file a peremptory challenge.   Rather, it sets up a direct calendar, all-purpose assignment program.   The time to file a challenge is as specified in the statute for all-purpose assignments.   The specification of a time period in the policy obviously is included as a matter of reference and convenience for attorneys, rather than as an effort to change what the Legislature has provided.   In this, it is similar to the corresponding Trial Court Delay Reduction rule of the same court.  (See Rules of the Los Angeles Superior Court, rule 1304.1.) ⁷

III

The fact is that section 170.6 reflects a legislative accommodation of “conflicting needs of litigant and court” (Thomas Realty Co. v. Superior Court, supra, 199 Cal.App.3d 91, 96, 244 Cal.Rptr. 733.)   As the lead opinion says, the statute has been amended so many times that it has something of a “ ‘patchwork’ quality.”  (Opn. p. ––––.)  And it may be, as the Reygoza court suggests, that section 170.6 should be re-examined by the Legislature.  (230 Cal.App.3d at p. 523, 281 Cal.Rptr. 390.)   Yet we are required to apply it as the Legislature has written and rewritten it.   One of its provisions requires that a section 170.6 challenge be filed within 10 days of the assignment of an all-purpose judge to a case, or within 10 days of a party's first appearance in such a case.   This is such a case.   And it is one in which counsel not only presumably knew the rules, but in which the all-purpose judge repeatedly made it clear that the case was not going to be reassigned.   There is no showing that the all-purpose assignment system was a fiction, a sham, or otherwise infirm.   The challenge, coming nearly 11 months after defendant's first appearance before the assigned all-purpose judge, was too late.   The trial judge was right to strike it.

I would deny the petition for writ of mandate.

FOOTNOTES

1.   We were informed at oral argument that during the pendency of proceedings in this court, and apparently subsequent to briefing, Judge Ouderkirk was reassigned to another department.   We have nonetheless undertaken to resolve the issue, here presented, on the record before us.

2.   See Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305.

3.   Although we have both the reporter's transcript and the minute order for the appearance of November 15, 1991, they reflect neither a time waiver on the part of the defendant nor a finding of good cause for further continuance on the part of the court.   December 4th was within the permissible 10–day trailing period from November 25, 1991;  it would have been the 9th day.   However, the record shows December 4th as “0/10.”   Therefore, it appears that it was regarded as a new trial date from which the permissible 10–day trailing period ran.

4.   Petitioner contends in his reply brief that this was the “second motion.”   There is only one motion reflected in the record before us.

5.   Although the declarations in this case do not discuss the specifics of the policy, it appears from the facts set forth in Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 517, 281 Cal.Rptr. 390, that the Statement of Policy issued by respondent states that “ ‘Any Case Assigned to a Direct Calendar Court is Assigned to the Judge Presiding in That Court For All Purposes, Including Trials. ’ ”   The policy required parties assigned to any of the direct calendar courts to exercise any peremptory challenge within 10 days of the defendant's first appearance in such court.  (230 Cal.App.3d at p. 518, 281 Cal.Rptr. 390.)

6.   The reference to Department 1 is apparently a typographical error.   We believe Judge Klausner intended to refer to Department 100.

7.   Those options are:  (1) the 10–day–5–day rule, which provides that if the judge (other than a judge assigned to the case for all purposes) is known at least 10 days before the date set for trial or hearing, then the challenge must be made at least five days before that date;  (2) the master calendar rule, which provides that if cases are assigned for trial from a master calendar, the motion must be made to the judge supervising the master calendar not later than the time of the assignment;  (3) the all-purpose assignment rule, which provides that if a case has been assigned to a judge for all purposes, the motion must be made within 10 days of the assignment (or, if later, within 10 days of the party's appearance in the action);  (4) the one judge rule, which provides that if the court is authorized to have only one judge, the motion must be made within 20 days of the first appearance of the challenging party;  and (5) the same-judge-after-reversal rule, which provides that if the original trial judge is assigned to conduct a new trial after reversal on appeal, the motion must be made within 60 days after notification of the assignment.The statute also specifies certain outer limits.   In a jury trial, the motion cannot be made after the drawing of the name of the first juror.   In a court trial the motion cannot be made after the plaintiff's opening statement or (if there is no opening statement) the swearing of the first witness or the taking of any evidence.   In the case of a hearing, as opposed to a trial, the motion must be made not later than the commencement of the hearing.   Also, the motion is precluded where a judge has presided over a pretrial conference or other hearing which involved determination of contested fact issues.Finally, the statute also contains an omnibus provision which provides:  “In the case of trials or hearings not herein specifically provided for, the procedure herein specified shall be followed as nearly as may be.”   (Code Civ.Proc., § 170.6, subd. (2).)

8.   The original source of this statement appears to be Los Angeles County Dept. of Pub. Social Services v. Superior Court, supra, 69 Cal.App.3d 407, 138 Cal.Rptr. 43, where the reviewing court made this statement without citation of supporting authority, apparently as a matter of statutory interpretation.   At any rate, the “general rule” language has been frequently repeated in subsequent cases.  (See In re Jose S. (1978) 78 Cal.App.3d 619, 626, 144 Cal.Rptr. 309;  In re Robert P. (1981) 121 Cal.App.3d 36, 41–42, 175 Cal.Rptr. 252;  In re Abdul Y. (1982) 130 Cal.App.3d 847, 855, 182 Cal.Rptr. 146;  People v. Superior Court (Hall) (1984) 160 Cal.App.3d 1081, 1083, 207 Cal.Rptr. 131;  Shipp v. Superior Court (1992) 5 Cal.App.4th 147, 150, 6 Cal.Rptr.2d 685.)

9.   See also Thomas Realty Co. v. Superior Court (1988) 199 Cal.App.3d 91, 244 Cal.Rptr. 733, where Division Two of this court admonished:  “The fact a litigant has only one round of ammunition is insufficient reason to permit him to hold his fire until, on the hearing date, he sees the whites of the judge's eyes;  Burbank is not Bunker Hill․  As the Supreme Court has instructed more than once, ‘we cannot permit a device intended for spare and protective use to be converted into a weapon of offense and thereby to become an obstruction to efficient judicial administration.’  [Citations.]”  (199 Cal.App.3d at p. 97, fn. omitted, 244 Cal.Rptr. 733.)

10.   In Lawrence v. Superior Court (1988) 206 Cal.App.3d 611, 617, 253 Cal.Rptr. 748, Division Seven of this court held that a peremptory challenge was untimely under both the 10–day–5–day rule and a local fast track rule (which required the challenge to be made within 10 days of notice of assignment to an individual calendar or all-purpose judge) where it was filed one day before hearing on a motion for summary judgment, but more than eight months after the action had been assigned to a specific judge for all purposes.

11.   In its brief, respondent asserted a confusing argument, claiming this case “may not fit exactly” under either the all-purpose assignment rule or the 10–day–5–day rule.   Based on representations of counsel at oral argument, however, it appears this position was taken because the trial court invoked the 10–day–5–day rule in support of its conclusion that the challenge in this case was untimely.   This was understandable in light of the Reygoza and Gonzales cases.   Respondent nevertheless contends, as it has since the enactment of its policy, that the all-purpose assignment rule should apply.

12.   Judge Klausner declares that “each of the 27 direct calendaring courts has an average inventory of 90 to 100 criminal cases, and collectively greater than 95% of the cases assigned to these courts for all purposes are actually disposed of by the courts to whom they are assigned.”   Based upon these figures, more than 100 of the current “inventory” of criminal cases will probably be reassigned prior to trial.

13.   Evidence of the legislative intent is found in the fact that at the time of the amendment case law distinguished between all purpose assignments to a department and all purpose assignments to a particular judge.  (People v. Escobedo, supra, 35 Cal.App.3d at p. 37, 110 Cal.Rptr. 550;  Augustyn v. Superior Court, supra, 186 Cal.App.3d at pp. 1228–1229, 231 Cal.Rptr. 298;  Woodman v. Superior Court, supra, 196 Cal.App.3d at p. 419, 241 Cal.Rptr. 818;  Moreira v. Superior Court (1989) 215 Cal.App.3d 42, 45, 265 Cal.Rptr. 437.)   The Legislature is presumed to be aware of this authority.  (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 659, 147 Cal.Rptr. 359, 580 P.2d 1155.)   Therefore, its choice of words, specifying that the new rule applied in circumstances where a case “has been assigned to a judge for all purposes” (emphasis added) takes on added significance in determining the proper interpretation of the rule.

1.   All further code citations are to the Code of Civil Procedure unless otherwise indicated.

2.   The document is quoted in Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 517–518, 281 Cal.Rptr. 390.   All counsel stipulated at oral argument that it is the same policy at issue in the present case.   The quoted listing of departments and judges in Reygoza only mentions the judge involved in that case.   Counsel have stipulated that the policy lists Judge Ouderkirk as the judge presiding in Department 130.

3.   The lead opinion disclaims placing the burden on respondent court, saying that petitioner made out a prima facie case by its allegation that the court's practice is to decide at the last minute whether to try the case or transfer it to Department 100.   That statement is nothing more than a conclusionary allegation in a pleading.   It is not borne out by the anecdotal declaration of petitioner's attorney.   The majority's statement that it is not persuaded by the available statistical information that the policy is working as intended makes it plain that it considers it to be respondent's burden to demonstrate that the program is “working as intended.”

4.   The case was decided before section 170.6 was amended in 1989, to explicitly apply the 10–day rule to all-purpose assignments.

5.   I agree with the view of Division 2 of this District in Thomas Realty Co. v. Superior Court (1988) 199 Cal.App.3d 91, 244 Cal.Rptr. 733, that assignment to a department is a sufficient designation of the judge who will hear the case to invoke the “5–day/10–day” rule of section 170.6, subdivision 2 (second sentence).

6.   In Gonzales, the court questioned whether the court policy was intended to have the force and effect of a court rule, but gave the trial court the benefit of the doubt on that issue.  (228 Cal.App.3d at p. 1591, 279 Cal.Rptr. 679.)   We are given no information with respect to whether the formalities for adoption of court rules have been observed with respect to the court policy in question (see Cal. Rules of Court, rule 981(b)(2), (e);  Los Angeles Superior Court rule 900), or of the consequence of a failure to do so.   This issue was not briefed, and consequently is not a factor in the lead opinion or this dissent.  (See Gov.Code, § 68081.)

7.   There is one technical difference, but it aids the party filing a challenge.   The policy allows a challenge to be filed within 10 days of the defendant's first appearance.  (Reygoza v. Superior Court, supra, 230 Cal.App.3d at p. 518, 281 Cal.Rptr. 390.)   The statute requires the challenge to be filed within 10 days of the notice of assignment of a case for all purposes unless the party has not yet appeared, in which case the time period extends to 10 days after the appearance.

ARLEIGH M. WOODS, Presiding Justice.

TAYLOR, J.,* Assigned, concurs.